Kong (Re), docket T-396-98

Date: 19990504

Docket: T-396-98

BETWEEN:

     IN THE MATTER OF the Citizenship Act,

     R.S.C. 1985, c. C-29

     AND IN THE MATTER OF an appeal from the

     decision of a Citizenship Judge

     AND IN THE MATTER OF

     NG TAI KONG

     Appellant

     REASONS FOR JUDGMENT

LEMIEUX J.:

INTRODUCTION

[1]      On March 5, 1998, Ng Tai Kong appealed to this Court a February 5, 1998 decision of Citizenship Judge Jay Hong who declined to approve Mr. Ng's application for citizenship made on November 8, 1996 on the ground that he failed to meet the residency requirements set out in paragraph 5(1)(c) of the Citizenship Act, R.S.C. 1985, c. C-29 ("the Act").

[2]      Under that paragraph of the Act, an applicant is required to have accumulated at least three years of residence in Canada within the four years immediately preceding his or her application.

[3]      Mr. Ng's appeal was by trial de novo and not by way of application under the Federal Court Rules, 1998, because his appeal was launched before those Rules came into effect.

THE CITIZENSHIP JUDGE'S DECISION

[4]      Citizenship Judge Hong stated that Mr. Ng's absences from Canada totalled more than two years (904 days) in the four years preceding his application and that, in these circumstances, Mr. Ng had to satisfy him, in order to meet the residence requirement, that Mr. Ng's absences from Canada could be counted as a period of residence.

[5]      Citizenship Judge Hong said that to establish residence, an individual must show, in mind and in fact, a centralization of his or her mode of living in Canada. He said that if such residence is established, absences from Canada do not affect this residence, as long as it is demonstrated that the individual left for a temporary purpose only and has always maintained in Canada some real and tangible form of residence.

[6]      Citizenship Judge Hong found that:

(a)      Mr. Ng arrived in Canada on August 3, 1993, as a landed immigrant with his father and mother, and his two brothers;

(b)      in the four years prior to making an application for citizenship, Mr. Ng was present in Canada for only 289 days, having spent the remainder of the time in Hong Kong. His absences left Mr. Ng 806 days short of the residence time required for citizenship.

[7]      Citizenship Judge Hong then made the following findings:

    

While I accept that physical presence within Canada for the whole 1095 days is not required, a certain period of physical presence is critically important to ensure a certain amount of commitment and connection to Canada. I am not prepared to abandon it lightly.

It is obvious to me that you had a choice to make before immigrating to Canada, either to stay in Hong Kong or to come to Canada and establish a new life here.

These facts have led me to conclude that your presence in Canada were only visits or temporary stays. This is insufficient to consider that you centralized your mode of living within the four years preceding the date of your application and therefore your absences from Canada cannot be counted as a period of residence in Canada.

[8]      Citizenship Judge Hong referred to the following jurisprudence of this Court:

(a)      in Re Koo, [1993] 1 F.C. 286 (T.D.), for the proposition that the purpose of paragraph 5(1)(c) of the Act is to ensure that everyone who is granted Canadian citizenship has become, or at least has been compulsorily presented with the every day opportunity to become "Canadianized" and that this happens by "rubbing elbows" with Canadians in shopping malls etc.

(b)      in Re Ghany, T-2726-90, January 10, 1992, Muldoon J. (F.C.T.D.) for the proposition that the Court must interpret the objects of paragraph 5(1)(c) of the Act to be that of ensuring that the would be citizen (and not just his or her inanimate property) has resided personally at least three of the four preceding years in Canadian society;

(c)      in Re Leung (1991), 42 F.T.R. 149, for the proposition that when the absence is for purely personal reasons and of a voluntary nature, days of absences cannot be counted; and for the proposition that while many Canadian citizens, whether Canadian born or naturalized, just spend a large part of their time abroad in connection with their business, and this is their choice, an applicant for citizenship does not have such freedom because of the provisions of the Act.

[9]      Citizenship Judge Hong concluded as follows:

A review of the facts of your case and the relevant case laws have also led me to conclude that you did not maintain sufficient ties with Canada during your absences to have those absences count as periods of residence under the Act.

THE EVIDENCE AT THE TRIAL DE NOVO

[10]      Mr. Ng testified in support of his appeal. Mr. Ng was born in Hong Kong on March 19, 1973. He entered Canada on August 3, 1993 as a dependent of his parents. He was 20 years old at the time and had completed the first year of his university studies in computer science at Hong Kong University. His record of landing under Intended Occupation said "Student". He did not have a scholarship.

[11]      Prior to coming to Canada, Mr. Ng's parents bought a house in Scarborough. This has been the family home since that time. Mr. Ng had his own room there where some of his personal belongings are located.

[12]      Before coming to Canada, Mr. Ng's parents had sold their Hong Kong family business, a toy manufacturing company. Mr. Ng's father was granted permanent residence status in Canada in the entrepreneur category. He immediately established a business in Canada under the name McArthur Import/Export Limited whose focus was in the toy products import-export trade.

[13]      Mr. Ng's pattern of absences from Canada were as follows:

(a)      from September 11, 1993 to December 7, 1993;

(b)      from January 4, 1994 to June 2, 1994;

(c)      from July 13, 1994 to December 17, 1994;

(d)      from January 11, 1995 to July 6, 1995;

(e)      from August 2, 1995 to February 10, 1996;

(f)      from March 13, 1996 to August 3, 1996;

[14]      Mr. Ng graduated in computer science from Hong Kong University in July 1995. His absences from Canada prior to that time are on account of his studies.

[15]      Mr. Ng was asked in cross-examination what planning he had done, prior to coming to Canada, to seek admission in a Canadian university rather than having to go back as a sophomore at the University of Hong Kong.

[16]      Mr. Ng answered that he sought admission from the University of Toronto and the University of Waterloo. The University of Waterloo felt that he was not qualified for entry in their computer program. The University of Toronto would not recognize his first year at Hong Kong University but would have admitted him as a first year student in their computer science program.

[17]      If Mr. Ng had entered the U. of T. program, Mr. Ng said he would have lost one year and would have graduated from U. of T. one year later. The University of Toronto's computer science program is a four-year program; the University of Hong Kong's program is a three-year program.

[18]      Mr. Ng. said there was another factor for not accepting U. of T.'s offer. He would have faced much higher tuition fees as a foreign student.

[19]      Mr. Ng testified he did not seek admission to any other Canadian university being of the view, after talking to his friends, that the two universities he explored were considered the best ones in computer science.

[20]      When he was at the University of Hong Kong, Mr. Ng stayed with his uncle and his family. He had his own room in his uncle's flat, paid no rent but took care of other expenses, including food.

[21]      In Hong Kong, Mr. Ng had other close relatives: another uncle and an aunt. His grandfather lives in China.

[22]      Mr. Ng was absent again from Canada after his graduation. He was absent from August 8, 1995 to February 10, 1996 and again from March 13, 1996 to August 8, 1996.

[23]      During this period, Mr. Ng was working in Hong Kong for his father's company. The company had been retained to assist a Hong Kong manufacturer in exporting products and to install a computer system. He was paid in Canadian dollars and filed income tax returns as a Canadian resident.

[24]      Recently, Mr. Ng changed jobs. He now works for a Toronto based trading company specializing in trading in household goods. With his new employer, Mr. Ng must still be away from Canada on business. He now spends one third to one half of his time in Canada.

[25]      During his after-graduation absences, Mr. Ng testified that he spent eighty percent (80%) of his time in Hong Kong and twenty percent (20%) of his time in China. When in Hong Kong, he stayed most of the time with his uncle but sometimes stayed in hotels when he had to meet customers. In mainland China, he stayed in hotels.

[26]      Mr. Ng was cross-examined on his attempts to obtain employment and work in Canada after graduation. He said that he started looking for such employment about six months before graduation. He sent about twenty applications for employment, half of which were in the management/trainee category and half of which related to the computer science field. He enquired of friends. He scanned the internet. During his month's stay in Canada, he said he was looking for jobs and opportunities.

[27]      Mr. Ng had some difficulty in identifying which Canadian companies he had made application to. They were in the Toronto area because his family was here. The replies he got were that there were no vacancies and no opportunities. In some cases, the negative answers related to his lack of qualifications which I conclude came from the companies he applied for in the management/trainee category.

[28]      Mr. Ng testified he was hired by his father because his father's business needed a person and also that he could count on his father hiring him as a fall-back.

[29]      Both Mr. Ng's father and mother are Canadian citizens and so are his brothers and sisters.

ANALYSIS

[30]      Mr. Ng filed his application for Canadian citizenship three years and three months after landing in Canada as a permanent resident. He was a university student and dependent upon his family for support.

[31]      During this period, approximately two years of it was taken up by Mr. Ng studying in Hong Kong and, during the other year, he was based in Hong Kong working for his father's Canadian firm. Throughout the entire period, he returned to Canada for brief periods; I appreciate that Hong Kong is quite a distance from Canada, even by plane.

[32]      The case before me cannot be characterized as exclusively a "student" case; rather, it is a hybrid one because Mr. Ng, after graduating from the University of Hong Kong in July 1995, only stayed in Canada for one month before returning to Hong Kong to work.

[33]      The Citizenship Act has the same residency requirements for permanent residents who are students as it does for other permanent residents wishing to qualify for citizenship, i.e. that residence in Canada must be for a period of three of the last four years preceding the application for citizenship.

[34]      Most of the jurisprudence I was referred to dealt with student cases. As I read those cases, this Court has applied the same interpretive tests for residency in student cases as it has for other applicants for Canadian citizenship recognizing the difficulty and, I would add, sensitivity of application in cases of students who pursue their studies abroad. Denault J. expressed it this way in Re Kwan, court file T-2748-97, November 26, 1998:

It is difficult to decide whether students pursuing their studies abroad shortly after their parents have established themselves in Canada, have themselves centralized their mode of living in this country.

[35]      One of the leading cases interpreting the residency requirement of the Citizenship Act is Re Papadogiorgakis, [1978] 2 F.C. 208, a decision of Thurlow A.C.J., (as he then was). Reed J. built on this decision and other cases to formulate her test in Re Koo, (supra), where she said the following at page 293:

The conclusion I draw from the jurisprudence is that the test is whether it can be said that Canada is the place where the applicant "regularly, normally or customarily lives". Another formulation of the same test is whether Canada is the country in which he or she has centralized his or her mode of existence.

Reed J. then went on to formulate six questions to assist in that determination.

[36]      Thurlow A.C.J., in Re Papadogiorgakis, at page 214 of the report said:

A person with an established home of his own in which he lives does not cease to be resident there when he leaves it for a temporary purpose whether on business or vacation or even to pursue a course of study. The fact of his family remaining there while he is away may lend support for the conclusion that he has not ceased to reside there. The conclusion may be reached, as well, even though the absence may be more or less lengthy. It is also enhanced if he returns there frequently when the opportunity to do so arises. It is, as Rand J. appears to me to be saying in the passage I have read, "chiefly a matter of the degree to which a person in mind and in fact settles into or maintains or centralizes his ordinary mode of living with its accessories in social relations, interests and conveniences at or in the place in question".

[37]      Thurlow A.C.J., applying this interpretation, found that throughout the material time Mr. Papadogiorgakis was resident at the home of his friends in Tusket, N.S. and even though he did not own the property, it was there that he centralized his mode of living in May 1974. It was there that he lived throughout the remainder of 1974 and the year 1975. His presence there in that period could not be called a "stay" or a "visit". When, in 1976, he left to go to university, he did so only for the temporary purpose of pursuing his studies. He did so without closing out or breaking the continuity of maintaining or centralizing his ordinary mode of living in Nova Scotia.

[38]      The issue in Papadogiorgakis, (supra), was not whether Mr. Papadogiorgakis had established or had centralized his ordinary mode of living in Canada. Thurlow A.C.J. had so found. The question before the Court in that case was whether, because of his absences abroad for purposes of post-graduate study, he continued or ceased to be a resident within the meaning of the statute. Thurlow A.C.J. concluded at page 215 as follows:

As it appears to me his mode of living was centralized there and had been centralized there for more than a year and a half before he began his courses at the university and it did not cease to be centralized there while he was at the university. In my view, it continued in all respects as before, subject only to the necessity of his absence therefrom for the temporary purpose of pursuing his studies.

[39]      To be successful in this appeal, Mr. Ng had to satisfy me:

(a)      first, he had established a centralized mode of living in Canada before he went back to Hong Kong to study and to work for his father's firm;

(b)      secondly, he maintained that centralized mode of living in Canada during those absences.

[40]      After hearing argument and after considering the cases both counsel put to me, it seems to me that both sides agree that the proper test to be applied here is whether Mr. Ng had centralized his ordinary mode of living in Canada.

[41]      Counsel for Mr. Ng puts a simple proposition to me. Mr. Ng has centralized his ordinary mode of living in Canada because he lives with his family, is dependent upon it, and his absences abroad were study and work-related and were for a temporary purpose.

[42]      Counsel for the respondent also accepted the concept of centralization of an ordinary mode of existence as the proper test to determine residency and took me through the six questions suggested by Reed J. in Re Koo, (supra), as helpful in determining the issue.

[43]      Counsel for the respondent points out that Mr. Ng had only been in Canada thirty-eight days before he returned to Hong Kong to pursue his studies and that this was to be contrasted with a number of cases such as the Papadogiorgakis case, (supra), where he was living in Canada four years studying at Acadia University before pursuing post-graduate studies abroad; Re Michael Brian Wasser, October 10, 1996, T-2330-95, where Noël J. (as he then was) allowed a student's appeal because he had "lived in Canada continuously between the ages of seven and twenty-seven before leaving to begin his advanced studies in the United States" and Re Thomas Alan Keahey, June 4, 1997, T-265-96, where Pinard J. allowed a student's appeal because that student had regularly, normally and customarily lived in Canada with the rest of his family for some twenty years before his long absences abroad to complete his studies.

[44]      Counsel for the respondent argued that Mr. Ng lived with his extended family in Hong Kong (his uncle); pointed out that the length of the absences were substantial (904 days) and he was considerably short of meeting the residency requirements. Counsel also pointed out that the pattern of physical presence in Canada indicates Mr. Ng is not returning home but is merely visiting and that his absences were not for a temporary purpose.

[45]      Mr. Ng failed to satisfy me that he had established his centralized or ordinary mode of living in Canada so that his days of absences could be computed for the purpose of the residency requirements under the Act. I base my decision on the following elements of the total circumstances of this case as I see them.

[46]      First, Mr. Ng returned to Hong Kong after only thirty-eight days in Canada. The similarity in Re Kwan, (supra), and Re Moulot, November 25, 1997, T-962-97, Pinard J. is striking.

[47]      Second, although a student and dependent on support from his family, Mr. Ng's return to Hong Kong was largely voluntary, a matter of choice. He had been accepted at the University of Toronto, albeit as a freshman. He did not accept that offer of enrolment because it would have taken him a couple of years more to obtain his Canadian degree. His ordinary mode of living would have been centralized in Canada. He preferred, as a matter of choice, to return to Hong Kong to obtain a quicker degree which he knew would not have the same recognition as a degree awarded from a Canadian university (see Re Kwan, (supra)) and which would have enhanced his integration in this country. I am not satisfied that the reason he did not accept the offer at the University of Toronto was for financial reasons.

[48]      Third, after graduation from the University of Hong Kong, he did not aggressively pursue employment in Canada but again, as a matter of choice or convenience, accepted work with his father's firm but work which required him to be absent from Canada (Re Lee, November 5, 1997, T-137-97, Gibson J. is similar).

[49]      Fourth, Mr. Ng was required to demonstrate some connection to Canada, some attachment to this country and not simply to his family. Mr. Ng failed to demonstrate a sufficient connection to Canada (see Re Shang, January 23, 1998, T-1186-97, Wetston J.; Re Chan, February 18, 1998, T-1870-97, Joyal J.).

[50]      Fifth, Pinard J. in Re Moulot, (supra), pointed out that the residency requirements in paragraph 5(1)(c) of the Act is residency during three of the last four years prior to the filing of the application for residency. As he put it:

Moreover, the Act already authorizes a person who has been lawfully admitted to Canada for permanent residence not to reside in Canada during one of the four years immediately preceding the date of the person's application for citizenship.

Mr. Ng filed his application for Canadian citizenship barely three and one third years after landing in Canada. He was legally entitled to do so. He told me that he is no longer working with his father's firm and that his new position requires him to be out of the country much less. Denault J. in Re Kwan, (supra), felt that in circumstances similar to the one before me, the application for citizenship was premature. I would put it in another way. By filing as early as he did, Mr. Ng diminished his chances of success because he did not give himself any breathing room to demonstrate the centralization of his ordinary mode of living in Canada which he may well be able to do now that his connection to Canada seems that much solid (as was the case in Re Hsieh, June 16, 1997, T-817-96, McKeown J.). He now has that opportunity by filing a new application for Canadian citizenship.

[51]      The reasons of Citizenship Judge Hong, while expanded by me here, are clearly right and as a result, the appeal is dismissed.

     François Lemieux

    

     J U D G E

OTTAWA, ONTARIO

MAY 4, 1999